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Jeetu Nat & Another vs State Of U.P. on 9 October, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Judgment reserved on : 07.09.2018

Judgment delivered on : 09.10.2018

Case :- CAPITAL CASES No. – 5345 of 2017

Appellant :- Jeetu Nat Another

Respondent :- State Of U.P.

Counsel for Appellant :- Nand Kishore Singh, Brijesh Sahai

Counsel for Respondent :- G.A.

Along with

Capital Reference No. 12 of 2017

Hon’ble Sudhir Agarwal,J.

Hon’ble Om Prakash-VII,J.

(By Om Prakash-VII, J.)

1. Aforesaid criminal (capital) appeal has been filed by accused appellants Jeetu Nat and Satish Nat against judgement and order dated 22.08.2017 passed by Additional Sessions Judge, Court No.1, Kannauj in Special Sessions Trial No.34 of 2014 (State Vs. Jeetu Nat and another) arising out of case crime no. 574 of 2014 under Sections 376, 377, 325, 307, 302, 201 IPC and Section 5/6 Protection of Children from Sexual Offences Act (hereinafter referred to as “POCSO Act”), Police Station Chhibramau, District Kannauj whereby accused appellants have been convicted and sentenced to death punishment for offence under Section 302 IPC and to pay a fine of Rs.50,000/- each; for offence under section 376 IPC to undergo imprisonment for life with a fine of Rs.25,000/- each; for offence under section 377 IPC to undergo ten years rigorous imprisonment with a fine of Rs.10,000/- each and in default of payment of fine, two years further imprisonment; for offence under section 325 IPC to undergo five years rigorous imprisonment with a fine of Rs.5000/- each and in default of payment of fine, one year further imprisonment; for offence under section 307 IPC to undergo imprisonment for life with a fine of Rs.10,000/- each and in default of payment of fine, two years further imprisonment; for offence under section 201 IPC to undergo five years rigorous imprisonment with a fine of Rs. 5000/- each and in default of payment of fine, one year further imprisonment and for offence under section 5/6 POCSO Act, accused-appellants have been convicted and sentenced to imprisonment for life with a fine of Rs.25,000/- each. All the sentences were directed to run concurrently.

2. Trial Court has also sent a reference under section 366 Cr.P.C. for confirmation of the death sentence, which is being disposed of along with aforesaid appeal.

3. Incident took place sometime after 12:00 Noon on 25.07.2014 and before 6:00 A.M. of 26.07.2014. First information report (hereinafter referred to as “F.I.R.”) was lodged by Neelu (P.W.1), father of deceased, against unknown persons on 26.07.2014 at 7:15 A.M. at Police Station Chhibramau, District Kannauj. Deceased was aged about 8 years. She was daughter of complainant.

4. Prosecution story, in brief, as unfolded in written report (Ex.Ka.1) is as follows :

Informant (P.W.1) Neelu son of Indal resident of village Mohan Nagla, P.S. Chhibramau, District Kannauj moved written report (Ex.Ka.-1) dated 26.07.2014 at police station concerned mentioning therein that on 25.07.2014 at about 12:00 noon, his daughter, about 8 years of age, after leaving the house, had gone to play in village. Informant had gone to earn his livelihood and his wife had also gone to collect grass from fields. When, in evening, informant and his wife returned to home, their daughter was found missing. A search was made by them in entire village and nearby fields, but she could not be found. On 26.07.2014, in morning at about 6:00 A.M., on mend (boundary) of the field of Sipahi Ram, near a pond, dead body of his daughter was found kept in a bag. Blood was oozing from her private part. Suspicion was shown by informant that offence of rape had been committed upon her daughter. Leaving dead body at the place of occurrence, informant came to police station for lodging F.I.R..

5. On the basis of written report (Ex.Ka.-1), Chik F.I.R. No.309 of 2014 (Ex.Ka.-3) was registered at crime no.574 of 2014 under Sections 376, 302, 201 IPC and Section 5/6 POCSO Act against unknown persons on 26.07.2014 at 7:15 A.M. G.D. entry was also made at same time which is Ex.Ka.-4. Investigation was entrusted to the then S.H.O. C.L. Verma (P.W.7).

6. Investigating Officer commenced investigation. He reached place of occurrence on 26.07.2014 itself and took into possession a pair of pink colour sleeper of size 10 (small) under which mud and dung were affixed, one blue colour ready-made underwear stained with blood and semen, which were belonged to deceased and gunny bag in which dead body was found, and recovery memo (Ex.Ka.-6 ) was prepared. Inquest report (Ex.Ka.-14) along with other police papers viz. photo lash (Ex.Ka.-15), challan lash (Ex.Ka.-16), letter to C.M.O. (Ex.Ka.-17) were also prepared at place of occurrence keeping dead body in a sealed cover and preparing sample seal.

7. Dead body was sent to mortuary for postmortem, which was brought by constables. Postmortem was done on body of deceased on 26.07.2014 at 5:50 P.M.

8. On general examination, deceased was found aged about eight years. Rigor mortis passed off from both upper and lower extremities. Postmortem staining was present on back of body. Putrefaction started. Body distended with gases. Skin peeled of at places and blister present at places. Discoloration present in both iliac fossa . Both eyes were closed and blackening was present. Mouth was half opened. Tongue bitten between teeth. Blood stained fluid was coming out from mouth.

9. On examination, following antemortem injuries were found on the body of deceased :

(i) Contusion measuring 15 x 7 cm. on whole of forehead including both eyes and part of right side of face.

(ii) Abraded contusion measuring 2.5 x 2 cm. on right side of face 4 cm. in front of tragus of right ear.

(iii) Contusion 6 x 3 cm. present in right submandibular region.

(iv) Abraded contusion measuring 2 x 1 cm. present on entire lateral border of right forearm 9 cm. above from wrist joint.

(v) Abraded contusion measuring 8 x 1.5 cm on upper part of lateral surface of right thigh measuring 3 cm. below from iliac crest.

(vi) Lacerated wound measuring 2 x 1.5 cm. on right tibial tuberosity which deep with avulsion of skin.

(vii) IInd right upper incisor tooth broken attach only by mucosa of gum. Socket filled with clotted blood.

(viii) Contusion measuring 8 x 6 cm. in left parietal region. Haematoma present in between scalp and left parietal bone.

(ix) Complete tear of Perineum measuring 3.5 cm. along mid line.

(x) Posterior wall of vagina lacerated measuring 4 cm. which is muscle deep.

(xi) Abraded contusion on whole of inner surface of anal canal.

10. On internal examination of body, parietal bone was found fractured. Cerebral vessels were found congested. Heamatoma was present. Lungs were congested. In stomach, 100 ml. Semi-digested food material was found present. Small intestine was half filled with digested food and gases. Large intestine was also found half filled with faecal matter and gases. Liver was found congested. Gall bladder was half filled and spleen was congested. Both kidneys were also found congested. Cause of death was shown due to Coma as a result of ante-mortem head injuries. Manner of causing injuries was also shown as with hard and blunt object. Postmortem report is Ex.Ka.-2.

11. Doctor conducting postmortem on body of deceased sent documents carried along with dead body and material / clothes found on body of deceased at the time of postmortem through constable carrying the same.

12. It also appears that since F.I.R. was lodged against unknown persons, investigating officer concerned took assistance of Dog Squad, which is said to be reached on same day. As per prosecution, sniffer dog after sniffing the place where dead body was found, roamed in village and reached the house of Ashok, brother of accused-appellants. Accused-appellants and occupant Ashok Nat were not present there. Investigating officer searched them, but they could not trace out. On 27.07.2017, investigating officer after copying inquest report in case diary, interrogated witnesses reducing the same in case diary, who named accused-appellants and co-accused Sudhir as culprit in this case. Accused-appellant Satish Nat and co-accused Sudhir Nat were arrested on 28.07.2014 .

13. Accused-appellant Satish Nat had opened the door from key kept by him and pointed out cot on which present offence was said to be committed. Investigating Officer had also found hair of deceased, pillow, one piece of bag, lock and key, which were taken into custody and keeping same in sealed covers and also preparing sample seals, memo (Ex.Ka.-7) was prepared on 28.07.2014 by investigating officer.

14. It is also the case of prosecution that co-accused Sudhir Nat, who was declared juvenile in conflict with law and his trial was separated from trial of accused-appellants, confessed the guilt and made disclosure statement showing the place of occurrence where offence is said to have been committed. Investigating officer had also taken t-shirt, which was worn by co-accused Sudhir, into his possession and kept the same in a sealed cover preparing memo.

15. Another recovery memo of blood stained t-shirt, kadhahi and t-shirt worn by co-accused Sudhir Nat, which were also taken into custody, was prepared as Ex.Ka.-8. It is also evident from record that on pointing out of co-accused Sudhir Nat, half burnt piece of pant and ashes of burnt pant were recovered and taken into custody and also keeping the same in a sealed cover and preparing sample seal, memo Ex.Ka.-9 was prepared. Accused-appellant Jeetu Nat was also arrested on 28.07.2014. Investigating officer has interrogated witness on 30.07.2014 and copied postmortem in case diary during investigation. Investigating officer has also interrogated other prosecution witnesses on different dates and visiting places of occurrence prepared Site Plans (Ex.Ka.-10, 11 and 12).

16. On 15.09.2014, all materials recovered in the matter were sent by investigating officer to Forensic Science Laboratory (hereinafter referred to as “F.S.L.”) Material recovered during investigation and sent for chemical examination were also produced before the Court during trial, which were identified and marked as Material Exhibits – 1 to 8.

17. It also appears that during investigation, accused-appellants were also medically examined on 29.07.2014.

18. Following injuries were found on the body of accused-appellant Jeetu Nat :

On general examination, no fresh injury was found.

Local examination of penis and surroundings :

(i) Pubic hairs are non mated.

(Some sample of pubic hairs preserved)

(ii) Smudge present around the coronal salcus

(Swab and slide of sample taken from the area of coronal salcus preserved)

(iii) No secondary injury present around the local area.

In the opinion of Doctor, no primary or secondary injury seen all over the body. However samples were preserved for pathological examination.

19. Following injuries were found on the body of accused-appellant Satish Nat :

On general examination, no injury was present / found.

Local examination of penis and surroundings :

(i) Pubic hairs are non mated

(Some sample of pubic hairs preserved)

(ii) No smudge present around the coronal salcus

(Swab and slide of sample taken from the area of coronal salcus preserved)

(iii) No secondary injury present around the local area.

In the opinion of Doctor, no primary or secondary injury seen all over the body. However sample were preserved for pathological examination.

20. Investigating officer, on the basis of permission taken from Magistrate concerned, collected semen of accused-appellants, preserved it and sent for chemical examination along with other materials for tallying the same with semen found on underwear of deceased recovered from the place where dead body of deceased was found. Report submitted by F.S.L. was also tendered by prosecution, which is marked as Ex.Ka.-19.

21. Investigating officer after fulfilling entire formalities of investigation and after collecting evidence, submitted charge-sheet (Ex.Ka.-13) against accused-appellants and co-accused Sudhir Nat for offence punishable under Sections 376, 377, 302, 201, 307, 325 IPC and Section 5/6 POCSO Act before Special Court, POCSO Act.

22. Cognizance was taken in the matter and charge against all three accused i.e. accused-appellants Jeetu Nat and Satish Nat and against co-accused Sudhir Nat were framed for offence under Sections 376, 377, 325, 307, 302, 201 IPC and Section 5/6 POCSO Act, to which they denied and pleading not guilty claimed their trial.

23. It also appears that co-accused Sudhir Nat during pendency of trial was found juvenile in conflict with law. Hence, trial in respect of co-accused Sudhir Nat was separated and Trial Court proceeded to record evidence in respect of accused-appellants only.

24. In order to prove its case, prosecution has examined eight witnesses in total, out of them P.W.1 Neelu is informant, P.W.2 is Smt. Raj Kumari, mother of deceased, P.W.3 Guddu is brother of informant and uncle of deceased, P.W.4 Indal is father of informant, P.W.5 Dr. R.D. Yadav, who conducted postmortem on body of deceased in panel of doctors, P.W.6 is lady constable Neetu Vaishnav, P.W.7 C.L. Verma, investigating officer and P.W.8 S.I. Bansi Lal Gupta.

25. After closure of prosecution evidence, statement of accused-appellants were recorded which read as under :

c;ku vfHk;qDr vUrxZr /kkjk 313 n0iza0la0

uke thrw firk dk uke jkts’k

mez 18 o”kZ is’kk etnwjh fuoklh eksguuxyk

Fkkuk fNcjkeÅ tuin dUukSt

iz’u% lk{; esa vk;k gS fd fnukad 25-07-2014 dks le; 12 cts nksigj ls lqcg 6 cts ds e/; LFkku vfHk;qDr lrh’k ds HkkbZ dk dejk cgn xzke eksgu uxyk Fkkuk fNcjkeÅ] tuin dUukSt esa vkius oknh uhyw dh vo;Ld iqh eksfudk mez 08 o”kZ ds lkFk mldh fcuk ethZ ds cykRdkj fd;k rFkk xqnk eSFkqu fd;kA bl lEcU/k esa vkidks D;k dguk gS

mRrj% xyr gSA

iz’u% lk{; esa vk;k gS fd mijksDr fnukad] le; o Lfkku ij vki yksxksa us oknh dh iqh eksfudk mez 08 o”kZ ds lkFk LosPN;k xqnk eSFkqu djds mldh gR;k dj nhA bl lEca/k esa vkidks D;k dguk gS

mRrj% xyr gSA

iz’u% lk{; esa vk;k gS fd mijksDr fnukad] le; o LFkku ij vki yksxksa us oknh dh iqh eksfudk mez 08 o”kZ dh gR;k dj nh rFkk lk{; dk foyksiu djus ds fy, mldh yk’k dks flikgh jke ds [ksr ds ikl fLFkr rkykc ds esM+ cgn xzke eksguuxyk ij Qsad fn;kA bl lEca/k esa vkidks D;k dguk gS

mRrj% xyr gSA

iz’u% lk{; esa vk;k gS fd mijksDr fnukad] le; o LFkku ij vki vfHk;qDr us ;g tkurs gq;s fd ekeysa dh ihfM+rk dh vk;q 18 o”kZ ls de gS rFkk og ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e 2012 ds vUrxZr ckfydk dh ifjHkk”kk dh ifjf/k esa vkrh gS] mlds lkFk cykRdkj] xqnk eSFkqu fd;k rFkk mldh gR;k dj nh rFkk lk{; dks foyqIr djus dk iz;kl fd;kA bl lEca/k esa vkidks D;k dguk gS

mRrj% xyr gSA

iz’u% vkius ih0MCyw0 1 oknh uhyw] ih0MCyw0 2 Jherh jktdqekjh] ih0MCyw0 3 xqM~Mw] ih0MCyw0 4 bUny dk lk{; i+k o lqukA bl lEca/k esa vkidks D;k dguk gS

mRrj% xyr xokgh nsrs gSA

iz’u% vkius ih0MCyw0 5 Mk0 vkj0Mh0;kno]ih0MCyw0 6 efgyk vkj{kh uhrw oS”.ko] ih0MCyw0 7 fujh{kd lh0,y0 oekZ dk lk{; i+k o lqukA bl lEca/k esa vkidks D;k dguk gS

mRrj% xyr gSA

iz’u% vkids fo:) eqdnek D;ksa pyk

mRrj% xkWo dh ikVhZcUnh ls A

iz’u% D;k vkidks lQkbZ lk{; izLrqr djuk gS

mRrj% th gkW A

iz’u% D;k vkidks dqN vkSj dguk gS

mRrj% iqfyl eqs ?kj ls idM+dj wBs eqdnes esa QWlk fn;kA

vfrfjDr c;ku vfHk;qDr vUrxZr /kkjk 313 n0iza0la0

uke thrw uV firk dk uke Jh jkts’k

mez 25 o”kZ is’kk etnwjh fuoklh eksguuxyk

Fkkuk fNcjkeÅ tuin dUukSt

iz’u% vkius ih0MCyw0 7 mifujh{kd lh0,y0oekZ] is’kdkj iqfyl v/kh{kd dUukSt ds c;ku i+s o lqusA bl lEca/k esa vkidks D;k dguk gS

mRrj% xyr c;ku fn;k vkjksi ugha curk gSA

iz’u% vkids fo:) eqdnek D;ksa pyk

mRrj% jaft’ku] xyr pyk A

iz’u% D;k vkidks lQkbZ lk{; izLrqr djuk gS

mRrj% th gkWA

iz’u% D;k vkidks dqN vkSj dguk gS

mRrj% xyr Qalk fn;kA

vfrfjDr c;ku vfHk;qDr vUrxZr /kkjk 313 n0iza0la0

uke thrw firk dk uke jkts’k

mez 20 o”kZ is’kk etnwjh fuoklh eksguuxyk

Fkkuk fNcjkeÅ tuin dUukSt

iz’u% vkius ih0MCyw0 8 lsokfuo`Rr mifujh{kd oa’khyky xqIrk ds c;ku i+s o lqusA bl lEca/k esa vkidks D;k dguk gS

mRrj% xyr gSA

iz’u% vkids fo:) eqdnek D;ksa pyk

mRrj% iqfyl us wBk pyk;kA

iz’u% D;k vkidks lQkbZ lk{; izLrqr djuk gS

mRrj% th ugha A

iz’u% D;k vkidks dqN vkSj dguk gS

mRrj% th ughaA

c;ku vfHk;qDr vUrxZr /kkjk 313 n0iza0la0

uke lrh’k firk dk uke brokjh yky

mez 46 o”kZ is’kk etnwjh fuoklh eksguuxyk

Fkkuk fNcjkeÅ tuin dUukSt

iz’u% lk{; esa vk;k gS fd fnukad 25-07-2014 dks le; 12 cts nksigj ls lqcg 6 cts ds e/; LFkku vfHk;qDr lrh’k ds HkkbZ dk dejk cgn xzke eksgu uxyk Fkkuk fNcjkeÅ] tuin dUukSt esa vkius oknh uhyw dh vo;Ld iqh eksfudk mez 08 o”kZ ds lkFk mldh fcuk ethZ ds cykRdkj fd;k rFkk xqnk eSFkqu fd;kA bl lEcU/k esa vkidks D;k dguk gS

mRrj% xyr gSA

iz’u% lk{; esa vk;k gS fd mijksDr fnukad] le; o Lfkku ij vki yksxksa us oknh dh iqh eksfudk mez 08 o”kZ ds lkFk LosPN;k xqnk eSFkqu djds mldh gR;k dj nhA bl lEca/k esa vkidks D;k dguk gS

mRrj% xyr gSA

iz’u% lk{; esa vk;k gS fd mijksDr fnukad] le; o LFkku ij vki yksxksa us oknh dh iqh eksfudk mez 08 o”kZ dh gR;k dj nh rFkk lk{; dk foyksiu djus ds fy, mldh yk’k dks flikgh jke ds [ksr ds ikl fLFkr rkykc ds esM+ cgn xzke eksguuxyk ij Qsad fn;kA bl lEca/k esa vkidks D;k dguk gS

mRrj% xyr gSA

iz’u% lk{; esa vk;k gS fd mijksDr fnukad] le; o LFkku ij vki vfHk;qDr us ;g tkurs gq;s fd ekeysa dh ihfM+rk dh vk;q 18 o”kZ ls de gS rFkk og ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e 2012 ds vUrxZr ckfydk dh ifjHkk”kk dh ifjf/k esa vkrh gS] mlds lkFk cykRdkj] xqnk eSFkqu fd;k rFkk mldh gR;k dj nh rFkk lk{; dks foyqIr djus dk iz;kl fd;kA bl lEca/k esa vkidks D;k dguk gS

mRrj% xyr gSA

iz’u% vkius ih0MCyw0 1 oknh uhyw] ih0MCyw0 2 Jherh jktdqekjh] ih0MCyw0 3 xqM~Mw] ih0MCyw0 4 bUny dk lk{; i+k o lqukA bl lEca/k esa vkidks D;k dguk gS

mRrj% xyr xokgh nsrs gSA

iz’u% vkius ih0MCyw0 5 Mk0 vkj0Mh0;kno]ih0MCyw0 6 efgyk vkj{kh uhrw oS”.ko] ih0MCyw0 7 fujh{kd lh0,y0 oekZ dk lk{; i+k o lqukA bl lEca/k esa vkidks D;k dguk gS

mRrj% xyr gSA

iz’u% vkids fo:) eqdnek D;ksa pyk

mRrj% xkWo dh jaft’k ds dkj.k A

iz’u% D;k vkidks lQkbZ lk{; izLrqr djuk gS

mRrj% th gkW A

iz’u% D;k vkidks dqN vkSj dguk gS

mRrj% eqs ?kj ls idM+dj iqfyl Fkkuk wBs eqdnesa esa Qalk fn;kA esjs NksVs NksVs 7 cPps A

vfrfjDr c;ku vfHk;qDr vUrxZr /kkjk 313 n0iza0la0

uke lrh’k firk dk uke Jhbrokjh yky

mez 45 o”kZ is’kk etnwjh fuoklh eksguuxyk

Fkkuk fNcjkeÅ tuin dUukSt

iz’u% vkius ih0 Mcyw0 7 mifujh{kd lh0,y0oekZ] is’kdkj iqfyl v/kh{kd dUukSt ds c;ku i+s o lqusA bl lEca/k esa vkidks D;k dguk gS

mRrj% xyr

iz’u% vkids fo:) eqdnek D;ksa pyk

mRrj% jaft’ku] xyr pyk

iz’u% D;k vkidks lQkbZ lk{; izLrqr djuk gS

mRrj% th gkW

iz’u% D;k vkidks dqN vkSj dguk gS

mRrj% th xyr izdj.k pyk

vfrfjDr c;ku vfHk;qDr vUrxZr /kkjk 313 n0iza0la0

uke lrh’k firk dk uke brokjh yky

mez 46 o”kZ is’kk etnwjh fuoklh eksguuxyk

Fkkuk fNcjkeÅ tuin dUukSt

iz’u% vkius ih0MCyw0 8 lsokfuo`Rr mifujh{kd oa’khyky xqIrk ds c;ku i+s o lqusA bl lEca/k esa vkidks D;k dguk gS

mRrj% xyr gS

iz’u% vkids fo:) eqdnek D;ksa pyk

mRrj% iqfyl us wBk Qlk;k

iz’u% D;k vkidks lQkbZ lk{; izLrqr djuk gS

mRrj% th ugha

iz’u% D;k vkidks dqN vkSj dguk gS

mRrj% th ugha

26. Accused-appellants in their defence have examined D.W.1 Sudip and D.W.2 Rajveer.

27. On completion of entire evidence of this case, Trial Court after hearing learned counsel for both parties and appreciating the evidence, vide impugned judgment and order convicted and sentenced accused-appellants for offences, as above and also submitted Reference to this Court for confirmation of death sentence.

28. Feeling aggrieved with said judgment and order of Trial Court, instant criminal (capital) appeal has been preferred by accused-appellants.

29. Heard Sri Brijesh Sahai, Advocate assisted by Ms. Katyayani, Advocate for appellants, Sri Rishi Chaddha, learned A.G.A. for State.

30. Assailing the findings recorded by Trial Court, learned counsel appearing for appellants argued that prosecution was not able to prove its case beyond reasonable doubt. Findings recorded by Trial Court in impugned judgment and order are perverse. F.I.R. was lodged against unknown persons. Accused-appellants were also tracing / searching deceased along with informant. Evidence collected by investigating officer during investigation and adduced before the Court concerned during trial are not sufficient to connect appellants with present case. Recovery said to have been made in the matter is also false. There are major contradictions on material points in prosecution evidence. None has seen appellants at any point of time along with deceased. Recovery of underwear of deceased from the place where dead body is said to have been recovered is also not believable as there are contradictory statement on point of recovery of said underwear. No incriminatory material was recovered from room of Ashok Nat. Lock and key have not been produced before the Court. None of the team member belonged to Dog squad has been examined in this case. It was further argued that proceeding adopted through Dog squad is relevant only for investigation, which cannot be relied on as a piece of evidence. It was also argued that sniffer dog had not reached directly to the room of Ashok Nat. It was next contended that none of offences levelled against accused-appellants are made out. At this juncture, learned counsel referred to charges framed under Sections 307, 325, 376 and 377 IPC and also referred medical evidence in this respect and submitted that these offences are not made out. Injuries found on body of deceased are not inconclusive nature to presume that offence under Sections 376 and 377 IPC were committed against deceased. Referring to statement of accused-appellants recorded under Section 313 Cr.P.C., it was further argued that incriminating evidence said to have been adduced by prosecution during trial and relied upon by Trial Court in impugned judgment and order were not placed / put before accused in statement under Section 313 Cr.P.C., therefore, serious prejudice has been caused to them in defending their case and on this score also, impugned judgment and order becomes illegal and vitiated. Learned counsel further argued that chain of circumstantial evidence have also not been proved by cogent evidence. It is entirely a case of no evidence against accused-appellants. Confession said to have been made by co-accused Sudhir Nat before police cannot be read against accused-appellants and on this score also findings recorded by Trial Court in impugned judgment and order are illegal. There are major contradictions and inconsistencies in evidence on material point. Trial Court has misinterpreted the conclusion drawn by F.S.L. in its report. There is also discrepancy itself in F.S.L. report about number of items sent for examination and opinion formed by Expert. Referring to the note appended with F.S.L. report, it is further argued that no DNA Test was conducted in this case to connect accused-appellants with the offence. Thus, referring to entire evidence, it was further argued that present case does not come under the purview of ‘rarest of rare case’. Trial Court has wrongly awarded death punishment to appellants. Impugned judgment and order suffers from perversity, illegality and infirmity and requires interference by this Court.

31. Per contra, learned A.G.A. argued that materials recovered from the place where dead body was found and from room of accused Ashok Nat as also recovery made on pointing out of accused-appellants in this case clearly reveal involvement of accused-appellants in present offence. Key of room, where pillow and other articles were recovered and offence was committed, was provided by accused-appellant Satish Nat and on the basis of disclosure statement of co-accused Sudhir, incriminating material has also been recovered. Thus, prosecution evidence to this extent is clearly proved. It was next contended that no question has been raised on point of putting entire incriminating evidence in statement under section 313 Cr.P.C. during trial, hence at this stage, accused-appellants cannot raise this question. F.S.L. report also demonstrates involvement of accused-appellants in this case, as semen found on underwear of deceased and sample of semen taken from accused-appellants were tallied with each other. Human blood was also found. Thus, prosecution was able to prove its case beyond reasonable doubt. All circumstances have been proved, which form a complete chain of circumstances against accused-appellants. It was also argued that since offence of rape and sodomy have been committed upon deceased and thereafter she was brutally killed, keeping in view the brutality caused to deceased, this case clearly comes under the purview of ‘rarest of rare case’. Findings recorded by the Trial Court are not perverse. There is no illegality or infirmity in the impugned judgment and order.

32. We have considered rival submissions advanced by learned counsel for parties and have gone through entire record.

33. In the instant case, learned counsel appearing for appellants has advanced arguments on many folds, but this Court proceeds to deal with submission raised on the point of statement of accused-appellants recorded under Section 313 Cr.P.C.

34. In Nar Singh Versus State of Haryana, (2015) 1 Supreme Court Cases 496, Court after setting aside judgment of Trial Court as well as High Court remitted the matter back to Trial Court for formulating correct questions and putting same before accused-appellant observing that prejudice is caused to accused-appellant on account of omission to put the question as to the opinion of the Ballistic Expert, which was relied upon by Trial Court as well as by High Court. Court also held that accused is not entitled to acquittal on the ground of non-compliance with the mandatory provisions of Section 313 Cr.P.C. Court has also discussed the ratio laid down in Paramjeet Singh alias Pamma v. State of Uttarakhand, (2010) 10 SCC 439; Basava R. Patil Ors. v. State of Karnataka Ors., (2000) 8 SCC 740, Avtar Singh Ors. v. State of Punjab, (2002) 7 SCC 419; Wasim Khan v. The State of Uttar Pradesh, AIR 1956 SC 400; Bhoor Singh Anr. v. State of Punjab, AIR 1974 SC 1256; Santosh Kumar Singh v. State through CBI, (2010) 9 SCC 747; State of Punjab v. Hari Singh Ors. (2009) 4 SCC 200; Kuldip Singh Ors. v. State of Delhi (2003) 12 SCC 528 and Alister Anthony Pareira v. State of Maharashtra (2012) 2 SCC 648 wherein it has been held that Trial Court is under a legal obligation to put incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the Court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Circumstances which were not put to the accused in his examination under Section 313 CrPC cannot be used against him and have to be excluded from consideration.

35. It has also been held that statutory provision is based on the rules of natural justice for an accused, who must be made aware of the circumstances being put against him so that he can give a proper explanation to meet that case.

36. In Santosh Kumar Singh (supra), Court has held that omission to put any material circumstance to the accused does not ipso facto vitiate trial and that the accused must show prejudice and that miscarriage of justice had been sustained by him.

37. Thus it is evident that any inadvertent omission on the part of Court to question accused on an incriminating circumstance cannot ipso facto vitiate trial unless it is shown that some material prejudice was caused to accused by the omission of Court.

38. In Nar Singh (supra), in para 20, Court has observed as follows :

“20. The question whether a trial is vitiated or not depends upon the degree of the error and the accused must show that non-compliance of Section 313 CrPC has materially prejudiced him or is likely to cause prejudice to him. Merely because of defective questioning under Section 313 Cr.P.C., it cannot be inferred that any prejudice had been caused to the accused, even assuming that some incriminating circumstances in the prosecution case had been left out. When prejudice to the accused is alleged, it has to be shown that accused has suffered some disability or detriment in relation to the safeguard given to him under Section 313 Cr.P.C. Such prejudice should also demonstrate that it has occasioned failure of justice to the accused. The burden is upon the accused to prove that prejudice has been caused to him or in the facts and circumstances of the case, such prejudice may be implicit and the Court may draw an inference of such prejudice. Facts of each case have to be examined to determine whether actually any prejudice has been caused to the appellant due to omission of some incriminating circumstances being put to the accused.

39. Court in Nar Singh (supra), in para 30, summarized the recourses available to Court when such plea is raised in appeal and prejudice has occasioned as follows :

30. Whenever a plea of omission to put a question to the accused on vital piece of evidence is raised in the appellate court, courses available to the appellate court can be briefly summarised as under:

30.1. Whenever a plea of non-compliance of Section 313 Cr.P.C. is raised, it is within the powers of the appellate court to examine and further examine the convict or the counsel appearing for the accused and the said answers shall be taken into consideration for deciding the matter. If the accused is unable to offer the appellate court any reasonable explanation of such circumstance, the court may assume that the accused has no acceptable explanation to offer;

30.2. In the facts and circumstances of the case, if the appellate court comes to the conclusion that no prejudice was caused or no failure of justice was occasioned, the appellate court will hear and decide the matter upon merits.

30.3. If the appellate court is of the opinion that non-compliance with the provisions of Section 313 Cr.P.C. has occasioned or is likely to have occasioned prejudice to the accused, the appellate court may direct retrial from the stage of recording the statements of the accused from the point where the irregularity occurred, that is, from the stage of questioning the accused under Section 313 CrPC and the trial Judge may be directed to examine the accused afresh and defence witness if any and dispose of the matter afresh;

30.4. The appellate court may decline to remit the matter to the trial court for retrial on account of long time already spent in the trial of the case and the period of sentence already undergone by the convict and in the facts and circumstances of the case, may decide the appeal on its own merits, keeping in view the prejudice caused to the accused.

40. If ratio laid down in aforesaid decisions are taken into consideration, then in the facts and circumstances of the case, the Court has to see what sort of incriminating evidence adduced by prosecution in its evidence have not been put to accused-appellants and how prejudice is caused to them. It is also to be seen whether on account of failure of putting incriminating circumstances, trial is vitiated and prejudice is caused to accused-appellants. To resolve the controversy, we have to analyze statements under section 313 Cr.P.C. recorded by Trial Court in this case, as are reproduced hereinabove, along with incriminating evidence relied on by the Court.

41. Trial Court while passing impugned judgment and order has based its findings on the following recoveries, said to have been made in this case :

Firstly, recovery of dead body, underwear and sleeper in a bag on boundary of field of Sipahi Ram.

Secondly, clothes, pillow and hair recovered from room of Ashok Nat on pointing out and furnishing key of room by accused-appellant Satish Nat. Aforesaid recoveries have been relied upon by Trial Court in impugned judgment and order. Thirdly, kadhahi and t-shirt of co-accused Sudhir (non-appellant) and also recovery of burnt ashes and piece of torn pant are also said to have been made in this case, which has been relied on by Trial Court.

Fourthly, on the basis of order passed by Court concerned, semen of accused-appellants were also taken and sent to F.S.L. along with other recovered material. Trial Court has relied on report (Ex.Ka.-19) submitted by F.S.L. in regard to recovered materials i.e. bag, underwear, piece of pant, burnt clothe, t-shirt, hair recovered from pillow, hair taken as sample from body of deceased, semen taken in this case of accused, kadhahi and shirt. Opinion expressed by F.S.L. in its report (Ex.Ka.-19) have been formed basis to record finding of conviction against accused-appellants.

Lastly, apart to this, Trial Court has also relied on the disclosure statement of co-accused Sudhir Nat as well as his confessional statement taking recourse to provision of Section 30 of Evidence Act to hold guilty to accused-appellants.

42. Trial Court has also relied on some other evidence adduced in this matter, as has been discussed here-in-above, but Court sorted out aforesaid evidence only for purpose of comparing the same with statement recorded under section 313 Cr.P.C. to ensure whether evidence relied on by Trial Court in impugned judgment and order have been put to accused-appellants in statement recorded under section 313 Cr.P.C. or not and also to see whether any prejudice has been caused to accused-appellants or not.

43. If statements of accused-appellants recorded under section 313 Cr.P.C. are analyzed in light of incriminating material relied on by Trial Court in the impugned judgment and order, it is evident that question no.1 in regard to accused-appellant Satish is purely related to offence under sections 376 and 377 IPC. Question no.2 is related to offence under section 302 IPC. Question no.3 is related to offence under section 201 IPC. Question no.4 is related to offence under POCSO Act. Question no.5 only reflects number of prosecution witnesses examined in this case. Question no.6 relates to statement of P.W.5, P.W.6 and P.W.7. It is clarified at this stage itself that in questions no. 5 and 6, only number of witnesses have been disclosed. Material part of their statement have not been disclosed in these questions. Next question also does not disclose any incriminating material. An additional statement of accused-appellant under section 313 Cr.P.C. was recorded disclosing only statement of P.W.7 without giving any details of statement of this witness. Other questions put on this date also do not disclose any incriminating material adduced by prosecution and relied on by Trial Court in the impugned judgment and order. It is also evident that again an additional statement of accused-appellant Satish has been recorded under section 313 Cr.P.C., which only reflects number of witness i.e. P.W.8 retired Sub-Inspector Banshi Lal Gupta without disclosing details of his statement. Other questions put in this additional statement also do not disclose any incriminating material. Similar is the position in statement of accused-appellant Jeetu. On three occasions, his statement under section 313 Cr.P.C. has been recorded in similar term, as was recorded in regard to accused-appellant Satish.

44. If questions put to both accused-appellants are compared with incriminating evidence relied on by the Trial Court in impugned judgment and order, it is evident that none of the recovered material either at the place where dead body of deceased was recovered or from the room of Ashok Nat or key lock or ashes and burnt clothes and also opinion expressed by F.S.L. in its report, which has been formed basis for conviction, were put before accused-appellants. Disclosure / confessional statement which has been relied on by the Trial Court in Para 36 of impugned judgment and order, taking recourse to provision of Section 30 of Evidence Act, have also not been placed before accused under section 313 Cr.P.C. It is pertinent to mention here that the Court is analyzing prosecution evidence and statement recorded under section 313 Cr.P.C. only to ensure compliance of mandatory provision of section 313 Cr.P.C. We are not dealing with these facts to decide the case on merit. We are also not expressing any opinion whether evidence relied on by the Trial Court are admissible under section 30 of Evidence Act or not and whether facts mentioned in the F.S.L. report (Ex.Ka.-19) and findings recorded by the Trial Court on the basis of that report are correct or not. Certainly, on close analysis of incriminating evidence adduced by prosecution and relied on by the Trial Court and questions put to accused-appellants under section 313 Cr.P.C., we find that none of recoveries said to have been made in this case and relied on by the Trial Court in impugned judgment and order have been put specifically to accused-appellants in their statement recorded under section 313 Cr.P.C. F.S.L. report, which also forms basis of conviction, has not been put before accused-appellants under section 313 Cr.P.C. It may also be mentioned that there is no direct evidence in present case. F.I.R. was lodged against unknown persons.

45. Thus, in our considered view, Trial Court ought to have put all incriminating materials adduced by prosecution which have been formed basis in recording the finding of conviction of accused-appellants. From the discussion made here-in-above, it is implicit that failure to put incriminating material / evidence, which has been relied upon by the Trial Court in impugned judgment and order, caused serious prejudice to accused-appellants in defending their right because without any explanation of accused-appellants regarding incriminating material appearing against them, Trial Court has placed reliance on those evidence in impugned judgment and order. Section 313 Cr.P.C. is mandatory in nature. It is imperative to the Court to follow mandate of section 313 Cr.P.C. Thus incriminating material, which were not put to accused, cannot be used against them. Trial Court has erred in following mandatory provision of law and we are also of the view that on account of failure to put incriminating material appearing against accused-appellants, as has been discussed here-in-above, trial is vitiated.

46. It is also pertinent to mention here that although accused-appellants had availed opportunity of leading defence evidence and it appears that no such plea has been raised in Trial Court, yet on analysis of entire facts and evidence in light of settled proposition of law, in our considered view, failure to put incriminating material to accused-appellants on the part of Trial Court itself has occasioned prejudice to them. It is not only established on the part of accused-appellants during arguments in Appeal, but it is also implicit from evidence available on record and from impugned judgment and order itself.

47. Court in Nar Singh (supra), on omission to put the question as to the opinion of the ballistic expert which was relied upon by Trial Court as well as by High Court, has also observed that such omission on part of Court occasioned serious prejudice to accused. Similar is the position in the present case. Not only F.S.L. report, which has been formed basis in recording finding of conviction, but other incriminating material i.e. recoveries said to have been made in this case have also not been put before accused-appellants. Defect has occurred on the part of Trial Court, which can be removed but accused-appellants are not entitled to be acquitted on the ground of non-compliance with the mandatory provisions of section 313 Cr.P.C. Trial court ought to have been more careful in framing questions and ensuring that all material evidence and incriminating circumstances were put to accused.

48. Thus, on the basis of ratio laid down in Nar Singh (supra), we are of the view that in this case if setting aside the impugned judgment and order matter is remitted back to the Trial Court for retrial at the stage of questioning accused under section 313 Cr.P.C., purpose of fair trial to both parties would be sub-served. In the above facts and circumstances, it would not be desirable to try the case before this Court from the stage of statement under section 313 Cr.P.C., especially when accused has right to lead evidence in their defence.

49. On the question of remitting the matter back to Trial Court on the ground of noncompliance of mandatory provisions of section 313 Cr.P.C., in Nar Singh (supra), Court has also observed that case may be remitted to Trial Court for proceeding afresh from the stage of section 313 Cr.P.C., so that the accused is given a fair trial. It is further observed that the victim of the offence or the accused should not suffer for lapses or omission of Court since for omission to put material evidence to accused in the course of examination under section 313 Cr.P.C., prosecution is not guilty of not adducing or suppressing such evidence, but it is the failure on the part of Trial Court.

50. In this case also, the aforesaid omission on part of Trial Court to put material evidence to accused-appellants in the course of their examination under section 313 Cr.P.C. has caused prejudice to them, but, at the same time considering entirety of facts and circumstances of the case on hand, accused-appellants do not deserve acquittal on account of such defect / omission.

51. It is also evident from record that accused-appellants are in jail and right of accused to speedy trial is a valuable right. Simultaneously right of victim’s family and society at large as well as accused also have to be kept in mind. Thus, in our view, while remitting matter back to Trial Court for proceeding afresh from the stage of recording statement of accused under section 313 Cr.P.C. in the light of discussion made here-in-above, Trial Court may be directed to marshal evidence on record and put specific and separate questions to accused with regard to incriminating evidence and circumstances and shall also afford opportunity to accused to examine defence witnesses, if any, and proceed with the matter. Trial Court needs also be directed to expedite the matter and decide in accordance with law, preferably within a period of six months from the date of receipt of this judgment. It is also clarified that for aforesaid reasons at this stage there is no need to discuss evidence in the present matter on other issues raised at Bar.

52. Thus, on the basis of aforesaid discussion, Criminal (Capital) appeal filed on behalf of accused-appellants is liable to be allowed and Reference submitted by Trial Court is liable to be rejected.

53. Accordingly, Criminal (Capital) appeal filed on behalf of accused-appellants is allowed and Reference submitted by the Trial Court is hereby rejected for the reasons discussed here-in-above. Impugned judgment and order dated 22.08.2017 passed by Additional Sessions Judge, Court No.1, Kannauj in Special Sessions Trial No.34 of 2014 (State Vs. Jeetu Nat and another) convicting and sentencing accused-appellants as above, is hereby set-aside. Matter is remitted back to Trial Court for proceeding afresh from the stage of recording statement of accused under section 313 Cr.P.C. in the manner discussed here-in-above. Trial Court shall examine accused afresh under section 313 Cr.P.C. in accordance with law. Trial Court is also directed to be cautious while marshaling evidence on record and examining accused under section 313 Cr.P.C. so that no incriminating evidence and circumstance, produced by prosecution during trial is left in the examination of accused and they are afforded opportunity to explain for the same. Needless to mention that accused, if want to examine any witness in defence, an opportunity shall be afforded to them. We also direct Trial Court to make all sincere efforts to conclude trial in accordance with law, expeditiously, preferably within a period of six months from the date of receipt of certified copy of this judgment.

54. It is made clear that we have not expressed any opinion on merits of the case.

55. Copy of this judgment alongwith lower court record be sent forthwith to the Court concerned for compliance.

Order date : 09.10.2018

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